My startup is hiring and many excellent engineers need H-1B transfers, but I haven’t done one yet.
Approximately how much time and money will we need to set aside for the process? Are there alternatives?
— Careful Co-Founder
Congrats on making it to the next stage: hiring!
Working with an experienced immigration attorney can help you save time and money in the process so you can onboard your new hires rapidly and continue to build. It’s important that your attorney understands your startup’s vision and goals.
Transferring an H-1B
To start, it’s important to take the required steps to qualify your startup for sponsoring the H-1B visa before proceeding with the transfer. If you’re transferring the H-1B of an individual who was recently laid off and is still in the U.S., it’s important to take these steps quickly since that person’s 60-day grace period has already started counting down.
Your attorney will help you determine the best strategy and assist your company with petitioning for the new hire.
Most immigration attorneys charge flat fees for their services, but those fees can vary substantially, so consider your options. According to a National Foundation for American Policy report issued a few years ago, the government filing fees and attorney legal fees for preparing and filing an H-1B transfer range in the market from $5,000 to $30,000 (rare but apparently possible!).
An H-1B specialty occupation visa transfer for a startup can typically be accomplished in a month or so, and usually for less than $10,000 all in — often much less than a recruiter. Check out this podcast episode on how to save money in the immigration process.
How the process works
For a brand-new startup, your attorney will first get your startup’s Federal Employer Identification Number (FEIN) verified by the U.S. Department of Labor’s Office of Foreign Labor Certification, which takes about a week.
Next, your attorney needs to file a Labor Condition Application (LCA) with the Labor Department to basically verify your startup will pay the H-1B transfer candidate the prevailing wage based on the job and geographical location of the job and that no qualified American worker is available to fill it.
The LCA has a dual purpose of protecting both American and foreign workers. There are posting requirements of various documents that can be accomplished digitally and/or physically depending on if you have a remote or physical office. The Labor Department normally processes LCAs in less than two weeks.
If the Labor Department certifies the LCA, your startup can submit an H-1B petition to U.S. Citizenship and Immigration Services (USCIS). For an early-stage startup, the USCIS filing fees are typically around $1,900. For the quickest processing time, file the petition with premium processing, which carries an additional $2,500 fee, to ensure that USCIS makes a decision or issues a request for information within 15 days.
If the H-1B transfer candidate has been maintaining valid H-1B status, they can begin working when your startup receives a receipt notice from USCIS. Keep in mind that the maximum stay in the U.S. on an H-1B is typically six years cumulatively across all employers unless the individual reaches certain milestones of the green card process.
O-1A extraordinary ability visas
If the prospective hire does not have an H-1B and qualifies (or is from India or China and is also looking for a way to get the fastest type of green card to shorten their wait time to getting permanent residence), consider sponsoring them for an O-1A extraordinary ability visa now or down the road.
Unlike the H-1B, an O-1A does not require a minimum salary or any filing with the Labor Department. And an O-1A petition can be filed with premium processing. The O-1A allows for an initial stay of three years and has no limit on the number of renewals, which are given in one-year increments.
However, the requirements for the O-1A are more stringent than for the H-1B — and more evidence intensive. Check out this previous Ask Sophie column in which I dive into how to meet each of the eight O-1A criteria.
The O-1A is a great stepping stone to an EB-1A extraordinary ability green card since many of the criteria for each overlap. In addition, either individuals can submit an EB-1A application on their own or employers can sponsor an individual and submit an EB-1A application on their behalf.
Consider recruiting and training students or recent graduates already in the U.S. on an F-1 visa who is eligible to work through OPT (Optional Practical Training) or STEM OPT, which is a two-year extension of OPT work authorization for individuals who studied in an approved STEM (science, technology, engineering, mathematics) field.
If a candidate with OPT or STEM OPT authorization was laid off or had a prior offer rescinded, they may be ready to work in short order, with perhaps as little as a SEVIS database update to generate a new I-20 or potentially a new STEM OPT Training Plan. Graduates already on OPT who need to find a new employer should inform their university’s Designated School Official (DSO) that they have a job offer from your company and the start date.
Your startup will need to enroll in the E-Verify employment eligibility verification program and complete a training plan on Form I-983. That form requires employers to explain how the job will enhance what the student learned in the degree program and verify it has enough resources and someone to train and supervise the STEM OPT student.
If a student hasn’t yet applied for OPT, they must apply for OPT no more than 60 days after graduation. OPT work authorization is good for one year. If the graduate has a degree in a STEM field, they are eligible for the two-year STEM OPT extension. OPT and STEM OPT will give your startup more time to either enter that individual in the annual H-1B lottery or help that individual build up their accomplishments to qualify for an O-1A visa.
All the best to you in expanding your startup!
Have a question for Sophie? Ask it here. We reserve the right to edit your submission for clarity and/or space.
Sophie Alcorn, the founder of Alcorn Immigration Law in Silicon Valley, CA, is an award-winning Certified Specialist Attorney in Immigration and Nationality Law by the State Bar Board of Legal Specialization. Sophie is passionate about transcending borders, expanding opportunity, and connecting the world by practicing compassionate, visionary, and expert immigration law. Connect with Sophie on LinkedIn and Twitter.
Sophie’s podcast, Immigration Law for Tech Startups, is available on all major platforms. If you’d like to be a guest, she’s accepting applications!